Deadline€¦ · , No. CV 06-00774 MMM (CWx), 2006 WL 4749756, at *6 n. 52 (C.D. Cal. Sept. 25, 2006). Because Plaintiff has not had an opportunity to respond to this argument, the

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 18-5724 PSG (FFMx) Date September 19, 2018

Title Ashley Judd v. Harvey Weinstein

Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy Hernandez Not Reported

Deputy Clerk Court Reporter

Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s):

Not Present Not Present

Proceedings (In Chambers): Order GRANTING in part and DENYING in part Defendant’smotion to dismiss

Before the Court is a motion to dismiss filed by Defendant Harvey Weinstein(“Defendant”). See Dkt. # 11-1 (“Mot.”). Plaintiff Ashley Judd (“Plaintiff”) has opposed thismotion, see Dkt. # 12 (“Opp.”), and Defendant replied, see Dkt. # 16 (“Reply”). The Court helda hearing on this matter on September 18, 2018. After considering the arguments made in themoving papers and at the hearing, the Court GRANTS Defendant’s motion in part and DENIESit in part.

I. Background

Defendant co-founded the film company Miramax, which produced or distributed manysuccessful films including Pulp Fiction, Shakespeare in Love, Chicago, and the Kill Bill series. See Complaint, Dkt. # 1-1 (“Compl.”), ¶¶ 6, 9, 14. At all times relevant to this suit, Defendantenjoyed “nearly plenary control of Miramax.” Id. ¶ 11. As a result of Miramax’s success,Defendant gained “power and cachet” in the film industry. See id. ¶ 10. Plaintiff alleges that“[b]y the late 1990s, [Defendant] was one of the most powerful and influential producers in thefilm business.” Id.

Plaintiff is a prominent actor. In around late 1996 or early 1997, when she was “in hertwenties and still a relative newcomer to Hollywood,” Defendant invited her to a breakfastmeeting at the Peninsula Hotel in Beverly Hills, ostensibly to discuss potential film roles. Id. ¶ 24. When she arrived, she was directed to Defendant’s private hotel room. Id. Assumingthe meeting was to occur there, she went to the room. Id. When Plaintiff arrived at the hotelroom, she alleges that Defendant “appeared in a bathrobe, and, instead of discussing film roles,asked if he could give her a massage.” Id. ¶ 25. Plaintiff refused. Id. She alleges thatDefendant then “asked her to help him pick out clothes and to watch him shower.” Id. Again,she refused. Id. Plaintiff alleges that she believed that Defendant intended to physically assaultCV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 15

Case 2:18-cv-05724-PSG-FFM Document 19 Filed 09/19/18 Page 1 of 15 Page ID #:174

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her. Id. “[D]esperate to escape without angering a man who had the ability to end her buddingcareer,” Plaintiff engaged in what she calls a “mock bargain” with Defendant, “suggesting thatshe would consider letting him touch her only if she won an Academy Award in one of hisfilms.” Id. Defendant allegedly responded: “[W]hen you get nominated,” but Plaintiff heldfirm, saying “No, when I win.” Id. She then fled the scene. Id. Plaintiff alleges that Defendantcontinued to “lord that traumatic moment” over her, telling her at several public Hollywoodevents “something to the effect that he ‘remembered their agreement.’” Id. ¶ 27.

About a year after the hotel room encounter, Plaintiff was involved in serious discussionsto play a major role in the Lord of the Rings trilogy of films, which were to be directed by PeterJackson. Id. ¶ 28. At this point, Miramax held the rights to the Lord of the Rings films. Id. ¶ 30. Jackson and his partner Fran Walsh invited Plaintiff to a private meeting where they showed her“essentially, their entire vision for how the film would be executed.” Id. ¶ 28. Jackson andWalsh also asked her which of two potential roles she most identified with and would prefer toplay. Id. Plaintiff alleges that the fact that they gave her “this rare creative insight into such aneagerly anticipated and secretive project” demonstrates that she had reached an advanced stageof the casting process. Id. She alleges that Jackson and Walsh “liked [her] very much” andintended to cast her in the Lord of The Rings films, which began shooting in October 1999. Id. ¶ 28. But Plaintiff did not end up being cast in the films. She alleges that for years, she didnot know the reason why. Id. ¶ 35.

In October 2017, the New York Times and The New Yorker magazine published theaccounts of a number of women, including Plaintiff, who accused Defendant of sexualharassment and assault in incidents stretching back decades.1 These stories sparked aninternational conversation about Defendant’s alleged pattern of sexual harassment and assault. Other women, including other actors, came forward with similar accusations. SeeCompl. ¶¶ 15–23.

As part of this conversation, Jackson—the director of the Lord of the Rings films—gavean interview to a New Zealand media outlet in December 2017 in which he revealed that“Miramax” had told him and Walsh in confidence during the time that they were casting thefilms that Plaintiff and Mia Sorvino—another actor who was being considered for a part in the

1 See Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusersfor Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations; Ronan Farrow, From Aggressive Overtures to Sexual Assault:Harvey Weinstein’s Accusers Tell Their Stories, The New Yorker (Oct. 10, 2017),https://www.newyorker.com/news/news-desk/from-aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their-stories.CV-90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 15


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series—were “a nightmare to work with and [that Jackson and Walsh] should avoid them at allcosts.” Id. ¶ 30. In another interview, Jackson said that “Miramax” had claimed to have had“bad experiences” with both actors in the past. Id.

Plaintiff alleges that these statements, which Jackson attributed to “Miramax,” were madeby Defendant. Id. Plaintiff alleges that Defendant knew the statements were false but madethem in retaliation for her earlier rejection of his sexual advances, intending to hinder herchances of being cast in the Lord of the Rings films. Id. ¶ 31. In support of her argument thatthe statements were knowingly false, Plaintiff alleges that, at the time, she had worked on onlyone Miramax film, Smoke, and had spent only two days on set in a limited role—an experienceshe alleges was “uniformly positive.” Id. ¶ 31.

Plaintiff alleges that she would have been cast in the Lord of the Rings films had it notbeen for Defendant’s false statements. Id. ¶ 31. In support, she cites a further statement fromJackson where he explained: “[a]t the time, we had no reason to question what [Miramax was]telling us—but in hindsight, I realise that this was very likely the Miramax smear campaign infull swing. I now suspect we were fed false information about both of these talented women [i.e.Plaintiff and Sorvino], and as a direct result their names were removed from the casting list.” Id. ¶ 38. The Lord of the Rings films went on to earn more than $2.5 billion in ticket sales andwon seventeen Academy Awards. Id. ¶ 36. They were followed by The Hobbit trilogy, whichwere also directed by Jackson and grossed nearly $1 billion worldwide. Id. Plaintiff alleges thatas a result of Defendant’s alleged false statements, she was not considered for either series. Id.

On April 30, 2018, Plaintiff brought this suit in California Superior Court, asserting fourcauses of action:

First Cause of Action: Defamation at common law and pursuant to Cal. Civ. Code § 46. Id. ¶¶ 48–60.

Second Cause of Action: Sexual harassment in professional relationships, Cal. Civ.Code §§ 51.9, 52. Id. ¶¶ 61–72.

Third Cause of Action: Intentional interference with prospective economic advantage. Id. ¶¶ 73–82.

Fourth Cause of Action: Violation of California’s Unfair Competition Law (UCL), Cal.Bus. & Prof. Code §§ 17200 et seq. Id. ¶¶ 83–92.

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On July 23, 2018, Defendant removed the case to this Court, invoking the Court’sdiversity jurisdiction. See Notice of Removal, Dkt. # 1. Defendant now moves to dismiss,arguing that Plaintiff’s claims are barred by the applicable statutes of limitations and further thather allegations fail to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficientfactual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)). In assessing the adequacy of the complaint, the court must accept all pleaded facts astrue and construe them in the light most favorable to the plaintiff. See Turner v. City and Cty. ofSan Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015); Cousins v. Lockyer, 568 F.3d 1063, 1067(9th Cir. 2009). The court then determines whether the complaint “allows the court to draw thereasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at678. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mereconclusory statements, do not suffice.” Id. Accordingly, “for a complaint to survive a motion todismiss, the non-conclusory factual content, and reasonable inferences from that content, mustbe plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted).

III. Discussion

Defendant argues that all of Plaintiff’s claims are barred by the applicable statutes oflimitations and makes additional arguments against three of Plaintiff’s causes of action.2 TheCourt will first address the statute of limitations argument, which is applicable to all claims, andwill then turn to the claim-specific arguments.

2 In his Reply, Defendant makes a further argument that the Court should not credit a number ofPlaintiff’s allegations because they are based only “on information and belief.” SeeReply 2:25–3:11. Generally, the Court does not consider arguments raised for the first time inreply. See Hill v. Opus Corp., 464 B.R. 361, 371 n. 34 (C.D. Cal. 2011); Deirmenjian v.Deutsche Bank, A.G., No. CV 06-00774 MMM (CWx), 2006 WL 4749756, at *6 n. 52 (C.D.Cal. Sept. 25, 2006). Because Plaintiff has not had an opportunity to respond to this argument,the Court will not consider it here.CV-90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 15


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A. Statute of Limitations

Plaintiff’s claims center around the false statements that Defendant allegedly made toPeter Jackson and Fran Walsh in 1998. But Plaintiff did not file this suit until 2018—twentyyears after the statements are alleged to have been made. The statute of limitations periods forPlaintiff’s claims range from one year to four years.3 Defendant argues that the claims should bedismissed in their entirety because they were brought well after the applicable limitations periodsexpired. See Mot. 5:22–7:11; 11:2–13:15; 16:21–17:1; 17:3–18:5. Plaintiff does not dispute thather claims, at least on their face, were filed after the limitations periods have expired. Instead,she argues that her suit is timely under California’s “discovery rule” because she had no way ofknowing about Defendant’s alleged statements to Jackson and Walsh until Jackson recountedthem in the December 2017 interview. See Opp. 6:1–10:11.

Generally, “[a] plaintiff must bring a claim within the limitations period after the accrualof the cause of action.” Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 806 (2005). Acause of action normally accrues “at the time when the cause of action is complete with all of itselements.” Id. (internal quotation marks omitted). In other words, the clock normally startsrunning on the limitations period when the events giving rise to each element of the cause ofaction have occurred.

The “discovery rule” serves as an exception to the general rule of accrual. Id. at 807. Under the discovery rule, a cause of action does not accrue “until the plaintiff discovers, or hasreason to discover, the cause of action.” Id. “A plaintiff has reason to discover a cause of actionwhen he or she has reason at least to suspect a factual basis for its elements.” Id. Plaintiffs arerequired to diligently investigate suspected injuries to determine their possible causes. Id. “Ifsuch an investigation would have disclosed a factual basis for a cause of action, the statute oflimitations begins to run on that cause of action when the investigation would have brought suchinformation to light.” Id. at 808– 09. In sum, to successfully invoke the discovery rule, “the

3 See Cal. Civ. Proc. Code § 340 (one-year statute of limitations for defamation); Augusta v.United Serv. Auto. Ass’n, 13 Cal. App. 4th, 10 (1993) (two-year statute of limitations forintentional interference with prospective economic advantage); Cal. Bus. & Prof. Code § 17208(four-year statute of limitations for violations of the UCL). Defendant argues that Plaintiff’ssecond cause of action under California Civil Procedure Code § 51.9 is subject to the one-yearstatute of limitations that was in effect for Unruh Act claims at the time. See Mot. 5:23–6:1 andn.5. Plaintiff argues that the § 51.9 claim is not properly viewed as an Unruh Act claim, but shedoes not dispute that the statute of limitations period for the claim is one year. See Opp.10:22–11:15 and n.3. Accordingly, the Court will assume for purposes of this motion that theclaim is subject to a one-year statute of limitations.CV-90 (10/08) CIVIL MINUTES - GENERAL Page 5 of 15


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plaintiff must plead that, despite diligent investigation of the circumstances of the injury, he orshe could not have reasonably discovered facts supporting the cause of action within theapplicable statute of limitations period.” Id. at 809.

Whether a plaintiff could have conducted an investigation that would have “reasonablydiscovered facts supporting the action within the applicable statute of limitations” period is afact-specific question. See id. at 810 (holding that whether the discovery rule applies is“normally a question of fact”); accord Nev. Power Co. v. Monsanto Co., 955 F.2d 1304, 1308(9th Cir. 1992) (“Where the cause of action was belatedly discovered, the issue whether theplaintiff exercised reasonable diligence is a question of fact.”); Ovando v. Cty. of Los Angeles,159 Cal. App. 4th 42, 61 (2008) (“The question when a plaintiff actually discovered orreasonably should have discovered the facts for the purposes of the delayed discovery rule is aquestion of fact unless the evidence can support only one reasonable conclusion.”).

Courts do not resolve factual issues like these on a motion to dismiss. Instead, they mustaccept the plaintiff’s non-conclusory allegations as true and determine whether they give rise toa plausible inference that the plaintiff is entitled to relief. See Iqbal, 556 U.S. at 678; Moss, 572F.3d at 969. Therefore, the question before the Court is whether Plaintiff’s allegations, acceptedas true, give rise to a plausible inference that she did not learn, and would not have beenreasonably able to learn, about Defendant’s statements within the applicable limitations periods. See Fox, 35 Cal. 4th at 408.

In her complaint, Plaintiff alleges that she did not actually learn of Defendant’s allegedstatements until Jackson recounted them in the December 2017 interview. See Compl. ¶ 38. Shealso alleges that she would not have been able to discover them earlier by conducting areasonable investigation. Specifically, she alleges that she reasonably believed that askingJackson and Walsh why she was removed from consideration for the Lord of the Rings castwould have “risked alienating them and negatively affect[ing] their willingness to consider herfor future projects.” Id. ¶ 35. She further alleges that even if she had asked them, Jackson andWalsh would not have disclosed Defendant’s statements because they were made in confidenceby a powerful producer and film distributor that they had an important business relationshipwith. Id.

Defendant argues that because Plaintiff believed Jackson and Walsh “liked [her] verymuch and intended to cast her,” see id. ¶ 28, she should have been on notice of potentialwrongdoing when she learned that she had not been cast in the Lord of the Rings films. See Mot.11:25–12:2. He contends that “[a]s a professional actor, Plaintiff and/or her agent certainly hadthe wherewithal to ask about the reasons for the casting decision,” and there “was nothingparticularly difficult that would have prevented [her] from discover[ing] or suspect[ing] thatCV-90 (10/08) CIVIL MINUTES - GENERAL Page 6 of 15


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something had gone awry, especially as Plaintiff contends she was a shoo-in for the part.” Id.12:8–15. This is especially true, Defendant argues, because the hotel room encounter and thecasting decision both occurred between 1996 and 1998—in “close proximity to each other,” ashe puts it—and therefore “should have raised Plaintiff’s suspicion that they were somehowconnected.” Id. 12:26–13:6. Defendant contends that because Plaintiff did not take action todetermine why she was not cast in the Lord of the Rings, she cannot show that she would havebeen unable to learn about the statements earlier by exercising reasonable diligence. See id.13:1–6.

However, at the motion to dismiss stage, Plaintiff’s allegations need only raise a plausibleinference that she would have been unable to learn of Defendant’s alleged statements during thelimitations period. Plaintiff has alleged that Jackson and Walsh would not have revealed thecontents of their confidential conversation with Defendant had she asked them why she had notbeen cast. The Court find this allegation plausible. Individuals often do not reveal the contentof their confidential conversations, especially when the conversation is with a powerful figurewho carries influence over them and includes derogatory information about the person inquiringabout it. At this point, no evidence has been presented about whether it is common in theindustry for actors to inquire into why they were not cast, and further, no evidence has beenpresented as to whether Jackson and Walsh would have informed Plaintiff about Defendant’sstatements had she asked them why she was not given a role in the Lord of the Rings films. Taking Plaintiff’s allegations as true—as the Court must at this stage—the Court concludes thatshe has raised a plausible inference that she would not have been able to learn about Defendant’sstatements during the limitations period, even if she had conducted a diligent investigation.

Defendant makes additional arguments for why the discovery rule should not apply to twoof Plaintiff’s claims. First, he argues that it should not apply to Plaintiff’s sexual harassmentclaim under California Civil Code § 51.9 because Plaintiff knew that she had been sexuallyharassed at the time of the hotel encounter in 1996 or 1997. See Mot. 5:22–7:11. But Defendantappears to be proceeding from the faulty premise that Plaintiff is seeking damages for injuriessuffered during the hotel room encounter itself. Instead, Plaintiff’s claim under § 51.9 targetsDefendant’s retaliation against her after she resisted his sexual advances. See Opp. 9:3–25. Thecommission of a retaliatory act is an element of Plaintiff’s § 51.9 claim based on quid pro quosexual harassment. See Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009) (holding that a plaintiffbringing a quid pro quo sexual harassment claim must show “tangible retaliatory conduct”). Asexplained above, Plaintiff’s allegations raise a plausible inference that she would not have beenable to learn of Defendants’ retaliatory conduct—i.e. the alleged statements—until December2017.



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Second, Defendant argues that Plaintiff cannot invoke the discovery rule with regard toher cause of action under the Unfair Competition Law (UCL) because “the ‘discovery rule’ doesnot apply to unfair competition actions.” See Mot. 17:11–16 (citing Stutz Motor Car of Am., Inc.v. Reebok Int’l Inc., 909 F. Supp. 1353, 1365 (C.D. Cal. 1995) and Suh v. Yang, 987 F. Supp.783, 795 (N.D. Cal. 1997)). But Defendant relies on outdated precedent. In 2013, the CaliforniaSupreme Court explicitly rejected Stutz and its progeny, holding that “the UCL is governed bycommon law accrual rules to the same extent as any other statute.” Aryeh v. Canon Bus. Sols.,Inc., 55 Cal. 4th 1185, 1196 (2013). Subsequent decisions applying Aryeh have held that thediscovery rule applies to UCL claims. See Cover v. Windsor Surry Co., No. 14-cv-5262-WHO,2015 WL 4396215, at *3 (N.D. Cal. July 15, 2015) (“Accordingly, I am bound by Aryeh . . . andI conclude that the discovery rule is available to toll the statute of limitations on [Plaintiff’s]UCL claim.”). The Court reaches the same conclusion here. Plaintiff can invoke the discoveryrule with regard to her UCL claim.

For the foregoing reasons, the Court concludes that Plaintiffs claims are not barred by theapplicable statutes of limitations.

B. Defamation Claim

Defendant argues that Plaintiff’s defamation claim should be dismissed for three reasons. First, he argues that Plaintiff has not adequately alleged that Defendant was the person whomade the allegedly false statements. Second, he argues that the statements are non-actionablestatements of opinion because they are not capable of being proven false. Finally, he argues thateven if the statements were defamatory, they were privileged under the common interest doctrinebecause Defendant, Jackson, and Walsh had a common interest in producing the Lord of theRings films. The Court addresses each argument in turn.

i. Whether the Statements Were Made By Defendant

Defendant’s first argument is easily dispensed with. It is true that Jackson attributed thealleged defamatory statements to “Miramax” in his media interviews. See Compl. ¶ 30. ButPlaintiff explicitly alleges in her complaint that the statements attributed to Miramax were in factmade by Defendant. See, e.g., id. ¶ 30 (“Miramax (i.e. Weinstein) told [Jackson] and Ms. Walsh,in confidence, that Ms. Judd . . . [was] ‘a nightmare to work with.’”); id. ¶ 31 (“These statementsof purported fact, made by Weinstein, were false.”). Plaintiff further alleges that Defendant had“nearly plenary control” of Miramax at the time. Id. ¶ 11.

These allegations, taken as true, are enough to raise a plausible inference that thestatements were made by Defendant. A company like Miramax can speak only through theCV-90 (10/08) CIVIL MINUTES - GENERAL Page 8 of 15


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people who run it, and Defendant allegedly exercised “nearly plenary control” over Miramax atthe time. Further, Plaintiff has alleged that Defendant had a motive to make the false statementsbecause he was angry that she had rejected his sexual advances. The Court therefore concludesthat these allegations are sufficient to raise a plausible inference that the statements Jacksonattributed to Miramax were made by Defendant.

ii. Whether the Statements are Non-Actionable Opinion

“The sine qua non of recovery for defamation is the existence of falsehood.” ZL Techs,Inc. v. Does 1-7, 13 Cal. App. 5th 603, 624 (2017) (cleaned up).4 To establish a defamationclaim, the plaintiff must show that the statement in question contained a provable falsehood. Id. Accordingly, courts distinguish between statements of fact and statements of opinion, the latterof which are generally “constitutionally protected.” Id. However, statements of opinion do notenjoy “blanket protection.” Id. “Where an expression of opinion implies a false assertion offact, the opinion can constitute actionable defamation.” Id. The key question is “whether areasonable fact finder could conclude the . . . statement declares or implies a provably falseassertion of fact.” Id.; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990) (“If aspeaker says, ‘In my opinion John Jones is a liar,’ he implies knowledge of facts which lead tothe conclusion that Jones told an untruth.”).

Whether a purported statement of opinion is susceptible of a defamatory interpretation isa question of law for the Court. ZL Techs., 13 Cal. App. 5th at 624. In making thisdetermination, the Court looks to the totality of the circumstances, putting itself in the place ofan average listener and determining “the natural and probable effect of the statement.” Id. Boththe language of the statement and the context in which it was made are relevant to this inquiry. Id.

Plaintiff’s defamation claim is based on two statements that Defendant allegedly made toJackson and Walsh: (1) that Plaintiff was “a nightmare to work with and [they] should avoid[her] at all costs,” and (2) that he had “bad experiences” with her in the past. See Compl. ¶ 30. Defendant argues that these statements are non-actionable statements of opinion. See Mot.14:19–15:14. But the Court disagrees.

4 The “cleaned up” parenthetical indicates that superfluous material like brackets, ellipses,quotation marks, internal citations, and footnote references has been removed from a quotationand its removal does not matter for understanding the quotation or evaluating its weight. SeeJack Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 147 (2018); see also,e.g., Lopez v. NAC Mktg. Co., LLC, 707 F. App’x 492, 493 (9th Cir. 2017) (using the cleaned upparenthetical).CV-90 (10/08) CIVIL MINUTES - GENERAL Page 9 of 15


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Defendant’s alleged statements imply at least two things: that Defendant had previousexperiences with Plaintiff and that Plaintiff did something during those experiences such thatDefendant considered them “bad” and considered her “a nightmare to work with.” Plaintiffargues that she can prove these statements false because Defendant had no previous professionalinteractions with her and her short two-day experience working on the Miramax film Smoke(where she alleges that she did not interact with Defendant) was uniformly positive. SeeOpp. 19:2–15. The Court agrees with Plaintiff.

If Defendant indeed had no previous professional interactions—i.e. no previous“experiences”—with Plaintiff, his statement that he had “bad experiences” with her would be aprovable fabrication. And in the context of a casting discussion for a major motion picture,Defendant’s statements that he previously had “bad experiences” with Plaintiff and that she was“a nightmare to work with,” heard together, could lead a reasonable person in Jackson’s positionto interpret them to imply that Defendant knew that Plaintiff had engaged in undesirable conductduring the production of previous films. This is a fact that Plaintiff could prove false if she isable to show that Defendant had no such knowledge. Because Defendant’s alleged statementsimplied facts that are capable of being proven false, Plaintiff has met her burden of pleading aprovable falsehood. See ZL Techs., 13 Cal. App. 5th at 624.

iii. Privilege

Defendant argues that the alleged statements cannot support a defamation claim becausethey are privileged under California’s “common interest doctrine.” See Mot. 15:15–19.

Under the common interest doctrine, “a communication, without malice, to a personinterested therein . . . by one who is also interested” cannot form the basis of a defamation claim. Cal. Civ. Code § 47(c). However, the privilege applies only to statements made “withoutmalice.” Id. A plaintiff can defeat a privilege claim at the motion to dismiss stage by plausiblyalleging that the defendant acted with actual malice in making the statements at issue. See Tausv. Loftus, 40 Cal. 4th 683, 721 (2007). A plaintiff can demonstrate actual malice by “showingthat the [statement] was motivated by hatred or ill will towards the plaintiff or by showing thatthe defendant lacked reasonable ground for belief in the truth of the [statement] and thereforeacted in reckless disregard of the plaintiff’s rights.” Id. (emphasis original); see also McGrory v.Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1538 (2013) (“[M]alice has been defined asa state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injureanother person.” (internal quotation marks omitted)).

It is clear that Plaintiff’s complaint sufficiently alleges actual malice. The crux ofPlaintiff’s defamation claim is that Defendant intentionally made false statements to Jackson andCV-90 (10/08) CIVIL MINUTES - GENERAL Page 10 of 15


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Walsh for the purpose of sabotaging her chances of being cast in the Lord of the Rings films. These allegations are enough to give rise to a plausible inference that Defendant “was motivatedby hatred or ill will toward her.” See Taus, 40 Cal. 4th at 721. The Court therefore concludesthat Plaintiff’s allegations are sufficient to give rise to an inference of actual malice such that thecommon interest privilege cannot bar her claims at the motion to dismiss stage.

For the foregoing reasons, the Court concludes that Plaintiff has adequately pleaded herdefamation claim. Accordingly, Defendant’s motion to dismiss the defamation claim isDENIED.

C. Sexual Harassment Claim

Plaintiff brings a claim under California Civil Code § 51.9, which prohibits sexualharassment by a defendant who is in a “business, service, or professional relationship” with theplaintiff. Cal. Civ. Code § 51.9(1)(1). Defendant argues that at the time of the hotel roomencounter, Plaintiff and Defendant were not in a business, service, or professional relationshipwithin the meaning of the statute. See Mot. 7:14–9:9; Reply 6:16–7:10.

The statute provides that a “business, service, or professional relationship may existbetween a plaintiff and a person, including, but not limited to, any of the following persons:

(A) Physician, psychotherapist, or dentist.

(B) Attorney, holder of a master’s degree in social work, real estate agent, real estateappraiser, accountant, banker, trust officer, financial planner loan officer, collectionservice, building contractor, or escrow loan officer.

(C) Executor, trustee, or administrator.

(D) Landlord or property manager.

(E) Teacher.

(F) A relationship that is substantially similar to any of the above.”

Cal. Civ. Code § 51.9(a)(1).



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Plaintiff does not argue that her relationship with Defendant falls into one of thecategories explicitly listed in the statute. Instead, she argues under § 51.9(a)(1)(F) that theirrelationship was “substantially similar” to the listed examples because they are “relationships inwhich one party has significantly more power than the other, and in many cases, where one partyserves as the gatekeeper to the other party’s financial success.” Opp. 12:17–19. Plaintiff arguesthat she was in a “drastically unequal power relationship” with Defendant because he “was agatekeeper to many desirable roles and film projects” and “was one of the most powerful andinfluential producers in the film business.” Id. 13:1–6 (citing the allegations at ¶¶ 10, 24, 62 and65 of the complaint). At the hearing on this matter, Plaintiff added a slightly different argument,suggesting that she could be covered by the statute even if her relationship with Defendant wasnot substantially similar to the listed examples because the statute provides that a covered“business, service, or professional relationship may exist between a plaintiff and a person,including, but not limited to . . . [relationships that are] substantially similar” to the enumeratedrelationships. See Cal. Civ. Code § 51.9(a)(1) (emphasis added).

But while the Court acknowledges that this provision uses broad language, there areindications that the statute was not intended to sweep so broadly. The introductory section of thebill enacting § 51.9 states that “[t]he Legislature finds and declares that sexual harassmentoccurs not only in the workplace, but in relationships between providers of professional servicesand their clients.” 1994 Cal. Legis. Serv. ch. 710, S.B. 612, § 1. While this section was notcodified with the rest of the statute, it was part of the act passed by the Legislature and providesa strong indication that the statute targets sexual harassment committed by providers ofprofessional services—not sexual harassment committed by anyone who could be said to beinvolved in any sort of business, service, or professional relationship. The California SupremeCourt appears to have taken this view, writing that “the Legislature enacted [§ 51.9] to address‘relationships between providers of professional services and their clients.’” Hughes, 46Cal. 4th at 1044 (quoting § 1 of the bill).

Adding further support to the proposition that § 51.9 was intended to cover providers ofprofessional services, many of the categories of individuals listed in the statute, like accountants,attorneys, and physicians, clearly fall into that category. See Cal. Civ. Code § 51.9(a)(1). Othercategories of individuals listed in the statute, such as teachers, might not be considered providersof professional services as the phrase is used in common parlance. But their relationships withstudents, which often put them in positions of trust or confidence and involve ongoinginteractions rather than one-off transactions, bear obvious similarities to the relationships thatphysicians have with their patients or those that attorneys have with their clients.

Plaintiff’s single meeting with Defendant at the Peninsula Hotel was “ostensibly todiscuss potential roles in films.” Compl. ¶ 30. In this encounter, Plaintiff was not seekingCV-90 (10/08) CIVIL MINUTES - GENERAL Page 12 of 15


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professional services from Defendant but rather employment as an actor. Plaintiff hasacknowledged that § 51.9 has never before been applied to an employer’s sexual harassment of aprospective employee, and the Court is not convinced that the statute was intended to cover suchharassment.

Plaintiff argues that the statute was intended to cover harassment in “powerrelationships,” see Opp. 12:22, but the statute does not use that term.5 Instead, § 51.9 providesan extensive list of twenty covered relationships, with a catch-all provision for relationships thatare “substantially similar” to those listed. The twenty examples primarily involve categories ofindividuals who could be described as providing professional services in at least some sense. And many of the examples listed in § 51.9 involve categories of individuals who frequentlyengage in ongoing, rather than one-off, interactions with the recipients of their services (forexample, attorneys, physicians, and teachers). In contrast, an employer cannot be said to beproviding professional services to a prospective employee—he is best described as seekingsomeone to provide professional services on his behalf. Further, typical relationships betweenpotential employers and prospective employees are generally much more limited in duration thanthe categories of relationships listed in § 51.9. A prospective employee usually either gets thejob after an interview or series of interviews (and then becomes covered under sexualharassment laws applicable to employment relationships), or does not get the job, in which casethe relationship ends. The temporary nature of a prospective employment relationship isqualitatively different than the often-more-permanent relationships common with the categoriesof individuals explicitly listed in the statute.

Plaintiff argues that whether her relationship with Defendant was “substantially similar”to those listed in § 51.9 is a question of fact that cannot be decided on a motion to dismiss. SeeOpp. 14:17–15:3. In support, she cites to Tenet Healthcare, 169 Cal. App. 4th 1094. But TenetHealthcare is distinguishable. That case involved the question of whether a patient’srelationship with a “certified nurse assistant” was substantially similar to the relationshipsexplicitly listed in the statute. Id. at 1106. The court noted that a “certified nurse assistant canhave a service or professional relationship with a patient . . . depend[ing] on the facts,” and thatthe plaintiff there had alleged that the certified nurse assistant in question “had responsibilitiesthat were substantially similar to those provided by a physician”—i.e. he alleged that they were

5A single passage of the legislative history does describe the statute as addressing “powerrelationships,” but it does so in the context of discussing landlord-tenant and teacher-studentrelationships. See Bill Analysis, Dkt. 13-2, Ex. 1 at 5, ¶ 2. Even if this passage is relevant tounderstanding the bill’s meaning, it cannot override the actual text of the bill that describes itspurpose as addressing sexual harassment in “relationships between providers of professionalservices and their clients.” 1994 Cal. Legis. Serv. ch. 710, S.B. 612, § 1. CV-90 (10/08) CIVIL MINUTES - GENERAL Page 13 of 15


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substantially similar to one of the relationships explicitly listed in the statute. Id.; see Cal. Civ.Code § 51.9(a)(1)(A) (listing a relationship between an individual and a physician as a coveredrelationship). The court concluded that the plaintiff “had alleged sufficient facts” to show thatthe certified nurse assistant fell within the scope of § 51.9 and that his “exact duties and hisrelationship with women who were patients [could] be fully litigated in a summary judgmentproceeding or trial.” Tenet Healthcare, 169 Cal. App. 4th at 1106–07.

In contrast to Tenet Healthcare, Plaintiff has not alleged that Defendant had the sameresponsibilities as one of the categories of individuals listed in the statute. While the law is notsettled on this point, the Court is skeptical that § 51.9 can ever properly be applied to arelationship between a potential employer and a prospective employee. But the Court does notto decide here whether such relationships are categorically outside the statute’s reach because itfinds that Plaintiff has not alleged sufficient facts to show that her relationship with Defendantwas substantially similar to any of the twenty listed examples. Accordingly, the Court GRANTSDefendant’s motion to dismiss the § 51.9 claim.

D. Intentional Interference with Prospective Economic Advantage Claim

With regard to Plaintiff’s claim for intentional interference with prospective economicadvantage, Defendant argues only that the claim is barred by the statute of limitations. Asexplained above, the Court finds that Plaintiff has adequately pleaded that she was unable todiscover the events giving rise to this claim until December 2017. Accordingly, Defendant’smotion to Plaintiff’s claim for intentional interference with prospective economic advantage isDENIED.

E. UCL Claim

The UCL prohibits individuals from engaging in “unlawful, unfair or fraudulent businessact[s] or practice[s].” See Cal. Bus. & Prof. Code § 17200. The statute is written in thedisjunctive and therefore is violated whenever an individual’s business act or practice isunlawful, unfair, or fraudulent. South Bay Chevrolet v. General Motors Acceptance Corp., 72Cal. App. 4th 861, 878 (1999).

Defendant argues that Plaintiff cannot state a UCL claim because she has not alleged thatDefendant engaged in unlawful conduct. But, as explained above, Plaintiff has adequatelypleaded her defamation claim. The UCL “borrows violations of other laws and treats theseviolations, when committed pursuant to a business activity, as unlawful practices independentlyactionable under [the UCL].” Farmers Ins. Exch. v. Superior Court, 2 Cal. 4th 377, 383 (1992).



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Because the defamation was allegedly committed “pursuant to a business activity,” Plaintiff hassufficiently pleaded a UCL claim based on an unlawful business act or practice. See id. Defendant’s motion to dismiss the UCL claim is therefore DENIED.

IV. Leave to Amend

At the hearing on this matter, Plaintiff requested an opportunity to amend her pleadings asto her sexual harassment claim under California Civil Code § 51.9. Whether to grant leave toamend rests in the sound discretion of the trial court. See Bonin v. Calderon, 59 F.3d 815, 845(9th Cir. 1995). The Court considers whether leave to amend would cause undue delay orprejudice to the opposing party, and whether granting leave to amend would be futile. SeeSisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Generally,dismissal without leave to amend is improper “unless it is clear that the complaint could not besaved by any amendment.” Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

As discussed above, the Court is skeptical that § 51.9 covers relationships betweenemployers and prospective employees. But Plaintiff has asked for the opportunity to allegeadditional facts demonstrating that her relationship with Defendant was not the ordinarypotential employer-prospective employee relationship. At this stage, the Court cannot concludethat amendment would be futile.

Accordingly, the Court GRANTS Plaintiff leave to amend. Plaintiff must file anamended complaint no later than October 19, 2018. Failure to do so will result in the § 51.9claim being dismissed with prejudice.

V. Conclusion

For the foregoing reasons, Defendant’s motion to dismiss is GRANTED in part andDENIED in part. The Court DISMISSES Plaintiff’s second cause of action for sexualharassment in violation of California Civil Code § 51.9. Plaintiff may proceed on her claims fordefamation, intentional interference with prospective economic advantage, and violation of theUCL.

If Plaintiff wishes to amend her § 51.9 claim she must file an amended complaint no laterthan October 19, 2018. Failure to do so will result in her § 51.9 claim being dismissed withprejudice.

IT IS SO ORDERED.



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Documents

Deadline€¦ · , No. CV 06-00774 MMM (CWx), 2006 WL 4749756, at *6 n. 52 (C.D. Cal. Sept. 25, 2006). Because Plaintiff has not had an opportunity to respond to this argument, the